8th Cir. Model Jury Instr. (Criminal) 12.08

[If you have found the existence of one or more statutory aggravating factors unanimously and beyond a reasonable doubt, you must then consider whether the [government] [prosecution] has proved the existence of [a] [any] nonstatutory aggravating factor[s]. As in the case for statutory aggravating factors, you must unanimously agree that the [government] [prosecution] has proved beyond a reasonable doubt the existence of [any of] the alleged nonstatutory aggravating factor[s]1 [and that [the] [those] factor[s] tend[s] to support imposition of the death penalty] before you may consider such factor[s] in your deliberations on the appropriate punishment for the defendant in this case.

In addition to any statutory aggravating factors you have found, you are permitted to consider and discuss only the nonstatutory aggravating factor[s] specifically alleged by the [government] [prosecution] and listed below. [You must not consider any other facts in aggravation which you think of on your own.]

The [first] nonstatutory aggravating factor[s] alleged by the [government] [prosecution] [is] [are] that (the following are examples – list as appropriate):

The defendant participated in additional uncharged murders, attempted murders, or other serious crimes of violence (describe pertinent facts).2, [and his participation in those acts tends to support imposition of the death penalty].3

The defendant would be a danger in the future to the lives and safety of other persons,4 as evidenced by (describe pertinent facts):

specific threats of violence,5

continuing pattern of violence,6

low rehabilitative potential,7

lack of remorse,8

mental evaluation, i.e., psychopathic personality,9

custody classification, and/or

other.

[and his dangerousness tends to support imposition of the death penalty].10

The defendant obstructed a criminal investigation, tampered with or retaliated against a witness, (describe pertinent facts),11 [and that [obstruction] [tampering] [retaliation] tends to support imposition of the death penalty].12

[Victim impact—the wording of this aggravator must be tailored to the facts of the case.]13

At this point you must record your findings regarding whether you unanimously find that the [government] [prosecution] has proven beyond a reasonable doubt the existence of [this] [any of these] nonstatutory aggravating factor[s] [with respect to the same murder]. Please enter that finding on [the appropriate] page [_____] of Section III(IV) of the Special Verdict Form, and continue your deliberations.